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The EPA Reaches Back in Time: Appeals Court Allows Government to Veto 404 Permits Issued Years Earlier

by: James PotterNexsen Pruet, LLC - Columbia Office

May 22, 2013

Previously published on May 16, 2013

Both public and private landowners have to obtain Section 404 discharge permits for the discharge of dredged materials from navigable waters. The Army Corps of Engineers is the permitting authority for the Section 404 permitting program.

The EPA has the ability to consult on this permit and is given statutory authority under Section 404 (c) (33 U.S.C. §1344) to veto a Corps permit discharge location. Normally, this power of the EPA to veto has been rarely used and has only occurred at or shortly after a Section 404 permit has been issued.

The Mingo Logan Company applied for a Section 404 permit to discharge materials from a mountain-top coal mine in West Virginia into three streams in 1999 and the Corps issued the permit in 2007 after the EPA notified the Corps that it was not pursuing any veto of the permit. With the change in administration in 2008, mountain top coal mining became controversial and EPA exercised its 404(c) veto power in 2011, four years after the permit was issued by the Corps of Engineers.

The mining company appealed the EPA’s action and the D.C. District Court summarily overturned the EPA’s action. This spring, the D.C. Circuit Court of Appeals reversed the District Court and is allowing a Section 404 (c) veto four years after a permit was issued. Mingo Logan Coal Company v. US EPA (No. 12-5150 April 23, 2013).

This decision -- allowing a veto years after issuing a Section 404 permit -- could have deleterious effects on industrial development and on potential financing of industrial projects. Lawyers will have to be careful in providing opinions regarding an issued Section 404 permit. It is hoped that the United States Supreme Court may review this Court of Appeals decision, but that review is discretionary with the Supreme Court.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.